Whether the deletion of Article 304 of the former Criminal Act, which provides for “the crime of deceptive traffic”, does not constitute a crime due to the repeal of statutes after the crime is committed (affirmative)

Article 304 of the former Criminal Act (Amended by Act No. 11574, Dec. 18, 2012); Article 1(2) of the Criminal Act; Article 326 subparag. 4 of the Criminal Procedure Act

Constitutional Court en banc Order 2008Hun-Ba58, 2009Hun-Ba191 Decided November 26, 2009 (Hun-Gong158, 2157)

Defendant

Prosecutor

Attorney Jeon Jong-young

Seoul High Court Decision 2012No2514 decided November 2, 2012

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the assertion of misunderstanding of the legal principles as to the state of mental or physical disability or non-performance

The lower court, on the grounds indicated in its reasoning, determined that the victim was not in the state of mental or physical disability or inability to resist.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on the condition of quasi-rape or the state of non-rape in the crime of quasi-rape, contrary to what

2. As to the assertion that an ex officio violation of the duty of inquiry on the crime of deceptive deception under Article 304 of the Criminal Act was committed

Article 304 of the former Criminal Act (amended by Act No. 11574, Dec. 18, 2012; hereinafter the same) provides that “Any person who has sexual intercourse by deceiving a female who does not habitually engage in sexual intercourse under precluding marriage or through other fraudulent means, shall be punished by imprisonment for not more than two years or by a fine not exceeding five million won.” However, the Criminal Act was amended by Act No. 11574, Dec. 18, 2012, and deleted.

Before the above amendment, Article 304 of the former Criminal Code provides that the part concerning the crime of deceptive assault in marriage was unconstitutional by the Constitutional Court Order 2008HunBa58 delivered on November 26, 2009, and there was no transitional provision regarding the application of penal provisions to acts before the enforcement in the Addenda, etc. of the above amended Criminal Code. In light of these circumstances, it is reasonable to deem that the deletion of Article 304 of the former Criminal Code was due to a change in the legal ideology that it was unfair to be subject to punishment due to the difference in the present evaluation as to the acts of deceptive assault in the past against women who have not habitually committed the crime. Accordingly, this constitutes a case where the crime was not constituted due to the repeal of the statutes after the crime and the punishment was abolished.

Thus, the act of deceptive means falling under Article 304 of the former Criminal Code is only subject to a judgment of acquittal pursuant to Article 326 subparagraph 4 of the Criminal Procedure Act. Thus, the argument in the grounds of appeal that the act of deceptive means falling under Article 304 of the former Criminal Code should be recognized and punished ex officio as a crime of deceptive means pursuant to Article 304 of the former Criminal Code cannot be accepted

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)